Crider, Robert Jackson, II ( 2015 )

PD-1248-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/12/2015 10:36:51 PM
Accepted 3/13/2015 10:32:33 AM
ABEL ACOSTA
CLERK
PD-1248-14
COURT OF CRIMINAL APPEALS OF TEXAS
ROBERT J. CRIDER, II
V.
STATE OF TEXAS
PETITIONER’S MOTION FOR REHEARING
FILED BY ROBERT J. CRIDER, II
ON APPEAL FROM
THE COUNTY COURT AT LAW NO.5, COLLIN COUNTY, TEXAS
CASE NO. 005-84506-08.
THE EIGHTH COURT OF APPEALS AT EL PASO, TEXAS
CASE NO. 08-12-00332-CR.
Robert Jackson Crider, II
14026 County Road 550
Farmersville, Texas 75442
March 13, 2015 (972)743-9448
No Fax
RJC5004@hotmail.com
PETITIONER
Petitioner’s Motion for Rehearing: page 1
INDEX OF AUTHORITIES
Case Page
Busic v. U. S., 446 U.S. 398, 406,
100 S. Ct. 1747, 1753, 64 L. Ed. 2d 381 (1980)……………….. 8
Bynum v. State, 767 S.W.2d 769, 774 (Tex.Cr.App., 1989)………….. 9
Crider v. State, No. PD-1248-14, 2015 WL 925176
(Tex.Crim.App. Feb. 25, 2015)…………………………………. 5-6
Davis v. State, 61 S.W.3d 94, 99 (Tex.App.-Amarillo, 2001)…………... 9
Engelking v. State, 750 S.W.2d 213, 215 (Tex.Crim.App. 1988)……… 8
Ex parte Williams, 786 S.W.2d 781, 783
(Tex.App.-Hous. [1st Dist.], 1990)………………………………. 8
Geeslin v. State Farm Lloyds, 255 S.W.3d 786, 794
(Tex.App.-Austin, 2008)………………………………………… 7
Getts v. State, 155 S.W.3d 153-158 (Tex.Crim.App., 2005)…………… 8
Mahaffey v. State, 316 S.W.3d 633, 635, 639 (Tex.Crim.App. 2010)… 5, 6
Papachristou v. City of Jacksonville, 405 U.S. 156, 162,
92 S. Ct. 839, 843, 31 L. Ed. 2d 110 (1972)……………………….. 8
Rewis v. United States, 401 U.S. 808, 812,
91 S. Ct. 1056, 1059, 28 L. Ed. 2d 493 (1971)…………………….. 8
Robinson v. State, 377 S.W.3d 712, 722 (Tex.Crim.App. 2012)…..…… 5
State v. Johnson, 198 S.W.3d 795, 797 (Tex. App.-San Antonio, 2006).. 9
State v. Johnson, 219 S.W.3d 386, 388 (Tex.Crim.App.2007)…………. 9
Thomas v. State, 919 S.W.2d 427, 430 (Tex.Crim.App.1996)…………. 8-9
United States v. Bass, 404 U.S. 336, 347,
92 S. Ct. 515, 522, 30 L. Ed. 2d 488 (1971)……………………….. 8
Petitioner’s Motion for Rehearing: page 2
Statutes and Rules Page
Sec. 545.104(a), Tex.Transp. Code…………………………………… 4
Texas Rule of Appellate Procedure 44.2(a)…………………………… 9
Petitioner’s Motion for Rehearing: page 3
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
ROBERT JACKSON CRIDER, II §
§
V. § CASE NO. PD-1248-14
§
THE STATE OF TEXAS §
PETITIONER’S MOTION FOR REHEARING
NOW COMES ROBERT JACKSON CRIDER, II,
PETITIONER, and moves this court to rehear his Petition for Discretionary
Review. In support, Petitioner shows:
On rehearing, Petitioner presents the following issues restating and
amplifying Issue 1 C set forth in his Petition:
ISSUE 1. Should Mr. Crider’s Motion to Suppress have been granted?
ISSUE1 A. When is a turn signal required at a “Y”
intersection?
ISSUE 1 B. Did the movement of Mr. Crider’s vehicle require
a turn signal pursuant to Sec. 545.104(a),
Tex.Transp. Code?
ISSUE 1 C. Is Sec. 545.104(a), Tex.Transp. Code
unconstitutional as applied to Mr. Crider’s
situation?
SUBSTANTIAL INTERVENING OR OTHER SIGNIFICANT
CIRCUMSTANCES:
This Court of Criminal Appeals authored and published two (2)
opinions on this appeal (February 25, 2015), in which Mr. Crider’s Petition
for Discretionary Review was refused, and in which four justices
Petitioner’s Motion for Rehearing: page 4
participated. There was a dissenting and a concurring opinion. See
Appendix. However, both opinions share common concern that the statute
at issue is unconstitutionally vague and overbroad as applied to “Y”
intersections.
Presiding Judge Keller wrote an opinion in which Judge Hervey
joined. That opinion observed that whether a motorist is required to signal
or not is dependent upon whether the “vehicle deviates from the direct
course of the roadway”. Citing Mahaffey v. State, 316 S.W.3d 633, 639
(Tex.Crim.App. 2010). That opinion recognized several questions of law
(Robinson v. State, 377 S.W.3d 712, 722 (Tex.Crim.App. 2012)) that arise
when motorists and police officers are confronted with a “Y” intersection.
The questions need to be answered:
Do they all “require a turn signal?”
Must motorists consider “which part of the “Y”” they are
driving on?
Are the angles at the “Y” intersection a factor to be considered?
Does the interruption of the continuous course of the roadway
by a stop sign “make a difference?”
If the roadway changes names between the branches being
traversed, “[d]oes it matter”?
Justice Newell’s concurring opinion, in which Justice Johnson joined
(Crider v. State, No. PD-1248-14, 2015 WL 925176 (Tex.Crim.App. Feb.
Petitioner’s Motion for Rehearing: page 5
25, 2015)), leaned toward the stop sign interrupting the “direct flow of the
roadway” at the “Y” requiring that Mr. Crider use a turn signal. However, if
a car stops at a stop sign (or red light) where each of the intersecting streets
is at a 90o angle, there is no requirement that a motorist signal to go straight.
Indeed, cars are not equipped with a “straight signal.” Driving straight is the
default option.
In the concurring opinion, Justices Newell and Johnson observed that
this Court has established the “common meaning” of the word “turn” as used
in Section 545.104(a), Tex.Transp. Code: “…‘turn’ means to change
directions-to turn the vehicle from a direct course of the roadway. You
either turn left, or you turn right out of the direct course or flow of normal
traffic.” Mahaffey, supra at 635. The concurring opinion acknowledges that
the above questions are “very good”, and “hope[s] the legislature answers
them.” Because the legislature has not answered them yet, this Court
should. At this juncture, the legislature has no impetus to answer these
questions by clarifying the statute. Here, the concurring and dissenting
opinions find common ground: “I share the desire to provide more guidance
to both police and motorists…” Concurring Opinion at 3.
Mr. Crider was stopped for allegedly failing to signal a turn at a “Y”
intersection. As assumed, the traffic stop was initiated by a police officer,
Petitioner’s Motion for Rehearing: page 6
who in this case is actually a sergeant (police supervisor). Unusually, the
motorist in this case was also a police sergeant. They were both licensed
Texas Peace Officers, sworn to uphold the laws of Texas. Like this Court,
the disagreement between police supervisors indicates the need for these
issues to be clarified so that common motorists who are not as informed can
know what conduct the criminal statute prohibits.
In this case, the intersection at issue has three (3) roadways that
converge at a corporate municipality’s boundary, each with different names.
The Southbound traffic traveling the same two roadways has no stop sign
and is considered a continuous course of the road so that no signal is
required. The only difference is that the Northbound traffic on those same
two roadways which Petitioner was traveling has a stop sign. (State’s
exhibit 6, at RR V4). A view of the roadway in question clearly shows Mr.
Crider’s movement followed what amounted to little more than a slight
curve. (CR 50).
BRIEF IN SUPPORT OF MOTION
An as-applied challenge to constitutionality requires a showing that
“the statute is unconstitutional when applied to that particular person or set
of facts.” Geeslin v. State Farm Lloyds, 255 S.W.3d 786, 794 (Tex.App.-
Austin, 2008).
Petitioner’s Motion for Rehearing: page 7
A person of ordinary intelligence must have fair notice that conduct
contemplated is forbidden by the statute, and the statute may not encourage
arbitrary and erratic arrests and convictions. See Engelking v. State, 750
S.W.2d 213, 215 (Tex.Crim.App. 1988); citing Papachristou v. City of
Jacksonville, 405 U.S. 156, 162,92 S. Ct. 839, 843, 31 L. Ed. 2d 110 (1972).
A statute must set "a standard sufficiently clear and definite so that an
ordinary person knows what constitutes proscribed conduct." Ex parte
Williams, 786 S.W.2d 781, 783 (Tex.App.-Hous. [1st Dist.], 1990).
If the Legislature “enacted into law something different from what it
intended, it should amend the statute…”. Getts v. State, 155 S.W.3d 153-158
(Tex.Crim.App., 2005).
“ ‘[A]mbiguity concerning the ambit of criminal statutes should be
resolved in favor of lenity.’ ” Busic v. U. S., 446 U.S. 398, 406, 100 S. Ct.
1747, 1753, 64 L. Ed. 2d 381 (1980) (superceded on other grounds by
statute); citing United States v. Bass, 404 U.S. 336, 347, 92 S. Ct. 515, 522,
30 L. Ed. 2d 488 (1971), quoting Rewis v. United States, 401 U.S. 808, 812,
91 S. Ct. 1056, 1059, 28 L. Ed. 2d 493 (1971). This Court has said that
another way. “Any doubt as to whether an offense has been committed
should be resolved in favor of the accused.” Thomas v. State, 919 S.W.2d
Petitioner’s Motion for Rehearing: page 8
427, 430 (Tex.Crim.App.1996); State v. Johnson, 198 S.W.3d 795, 797
(Tex. App.-San Antonio, 2006).
"[W]hen challenging the constitutionality of a statute, it is incumbent
upon a defendant to show that in its operation the statute is unconstitutional
to him in his situation." Bynum v. State, 767 S.W.2d 769, 774 (Tex.Cr.App.,
1989) "[C]riminal statutes outside the penal code must be construed strictly,
with any doubt resolved in favor of the accused." State v. Johnson, 219
S.W.3d 386, 388 (Tex.Crim.App.2007)
HARM
Petitioner has shown harm by the errors complained of. “[T]he fruits
of the illegal search were admitted into evidence at trial and constituted the
basis of the Petitioner’s conviction. If the trial court had suppressed the
evidence, as it should have, there would have been no basis upon which the
State could have prosecuted the Petitioner. Consequently, this Court cannot
but hold that the trial court's error was harmful under Texas Rule of
Appellate Procedure 44.2(a).” Davis v. State, 61 S.W.3d 94, 99 (Tex.App.-
Amarillo, 2001).
Petitioner’s Motion for Rehearing: page 9
CONCLUSION AND PRAYER
WHEREFORE, Petitioner requests that this Court of Criminal
Appeals grant his Petition and afterwards reverse and render judgment or
remand to the trial court for further proceedings consistent with this Court’s
opinion.
DATED: March 12, 2015
Respectfully submitted,
/s/ Robert Jackson Crider, II
Robert Jackson Crider, II
4026 County Road 550
Farmersville, Texas 75442
(972)743-9448
No Fax
RJC5004@hotmail.com
PETITIONER
RULE 79.2(c) CERTIFICATE
This motion for rehearing the order that refused the petition for
discretionary review is grounded only on substantial intervening
circumstances or on other significant circumstances which are specified in
the motion. This motion is so grounded, is made in good faith and not for
purposes of delay.
/s/ Robert Jackson Crider, II
Robert Jackson Crider, II
Petitioner’s Motion for Rehearing: page 10
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing and attached documents were
electronically served to the following recipients, if that option was available
through the electronic filing manager, and if not, it was mailed to Appellee’s
counsel on Thursday, March 12, 2015:
Greg Willis,
Criminal District Attorney
Collin County, Texas
John Rolater
Andrea L. Westerfeld
Appellate Section
Collin County District Attorney's Office
2100 Bloomdale Rd., Suite 100
McKinney, Texas 75071
and in accordance with Rules 68.11 and 79.7, Tex.R.App.P., in the same
manner it was provided to:
Lisa C. McMinn
State Prosecuting Attorney
P. O. Box 13046
Austin, Texas 78711-3046
Telephone: (512) 463-1660
Fax: (512) 463-5724
information@spa.texas.gov
and 10 paper copies will be delivered to the Clerk of this Court of Criminal
Appeals within three (3) business days as required by the Rules.
/s/ Robert Jackson Crider, II
Robert Jackson Crider, II
Petitioner’s Motion for Rehearing: page 11
APPENDIX
1. Dissenting Opinion of this Court …………….……………..Pass Im
2. Concurring Opinion of this Court …………………………..Pass Im
Petitioner’s Motion for Rehearing: page 12
PD-1248-14
COURT OF CRIMINAL APPEALS OF TEXAS
ROBERT J. CRIDER, II
V.
STATE OF TEXAS
TAB 1
FILED BY ROBERT J. CRIDER, II
ON APPEAL FROM
THE COUNTY COURT AT LAW NO.5, COLLIN COUNTY, TEXAS
CASE NO. 005-84506-08.
THE EIGHTH COURT OF APPEALS AT EL PASO, TEXAS
CASE NO. 08-12-00332-CR.
Robert Jackson Crider, II
14026 County Road 550
Farmersville, Texas 75442
(972)743-9448
No Fax
RJC5004@hotmail.com
PETITIONER
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1248-14
ROBERT JACKSON CRIDER, II, Appellant
v.
THE STATE OF TEXAS
DISSENT TO REFUSAL TO GRANT
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE EIGHTH COURT OF APPEALS
COLLIN COUNTY
K ELLER, P.J., filed a dissenting opinion in which H ERVEY, J., joined.
This case involves a traffic stop for failure to signal a turn at a “Y” intersection. The two
branches of the “Y” are Vinson Road and County Line Road; the base of the “Y” is FM544.
Appellant, traveling on Vinson, failed to signal a turn when he reached and continued onto FM544.
We have held that a turn signal is required only when a vehicle deviates from the direct
course of the roadway.1 Under this definition, at the place where Vinson meets FM544, a driver
1
Mahaffey v. State, 316 S.W.3d 633, 639 (Tex. Crim. App. 2010).
CRIDER DISSENT — 2
coming from either direction would seem to be following the normal course of the roadway, while
one traveling from Vinson to County Line would appear to be deviating from the direct course of
the roadway, i.e., turning. Faced with little guidance from this Court, the court of appeals held that
appellant executed a turn when he continued onto the base of the “Y” intersection because “the direct
flow of traffic terminated” at the intersection.2
There are a number of issues that might—or might not—bear on the answer to whether a turn
signal is required at a “Y” intersection. Do all “Y” intersections require a turn signal? Does it
matter which part of the “Y” intersection the driver is traveling from? Do the angles of the “Y”
intersection matter? In this case, Appellant had a stop sign. Does the presence of one or more stop
signs make a difference? Does it matter whether the name of one branch of the “Y” and the base are
the same? These are questions of law,3 but there are no definitive answers to any of these questions.
I would grant review to answer these questions, so that motorists and police officers will know what
the law requires. Because the Court does not, I respectfully dissent.
Filed: February 25, 2015
Publish
2
Crider v. State, No. 08-12-00332-CR, slip op. at 6 (Tex. App.–El Paso June 30, 2014) (not
designated for publication).
3
Robinson v. State, 377 S.W.3d 712, 722 (Tex. Crim. App. 2012) (“The only disagreement
in this case was not about the character of the roadway, but about the legal significance of the
character of the roadway. The question whether the appellant was required to use his turn signal was
therefore a question of law.”).
PD-1248-14
COURT OF CRIMINAL APPEALS OF TEXAS
ROBERT J. CRIDER, II
V.
STATE OF TEXAS
TAB 2
FILED BY ROBERT J. CRIDER, II
ON APPEAL FROM
THE COUNTY COURT AT LAW NO.5, COLLIN COUNTY, TEXAS
CASE NO. 005-84506-08.
THE EIGHTH COURT OF APPEALS AT EL PASO, TEXAS
CASE NO. 08-12-00332-CR.
Robert Jackson Crider, II
14026 County Road 550
Farmersville, Texas 75442
(972)743-9448
No Fax
RJC5004@hotmail.com
PETITIONER
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1248-14
ROBERT JACKSON CRIDER, II, Appellant
v.
THE STATE OF TEXAS
CONCURRING WITH REFUSAL TO GRANT
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE EIGHTH COURT OF APPEALS
COLLIN COUNTY
N EWELL, J., filed a concurring opinion in which J OHNSON, J., joined.
I agree with this Court’s decision not to grant discretionary review of the unpublished
opinion in this case. I write separately because I believe the court of appeals properly
answered the question before it and because I do not believe this is the case to determine
whether a particular type of roadway requires a “turn” or a “merge” or when a signal is
required at a “Y” intersection.
The court of appeals described the “Y” intersection at issue in this case as follows:
The record here indicates that the direct flow of traffic on
Crider Concurring Opinion - Page 2
Vinson Road appears to terminate at the stop sign, when the
road essentially splits into FM 544 and County Line Road.
Although the right turn from Vinson Road onto County Line
Road is at a steeper angle than the turn from the same road onto
FM 544, all three roads are “equally travelled roads,” and
because a ditch lies opposite the stop sign, a driver on Vinson
Road stopped at the intersection stop sign must clearly make a
choice: turn left or turn right.
Crider v. State, No. 08-12-00332, 2014 WL 2993792, at *3 (Tex. App.–El Paso June 30,
2014) (not designated for publication). According to the court of appeals, there was no more
direct flow of the roadway at the intersection because there was a stop sign that forced the
driver to choose a path. Id.
This is unlike the road in Mahaffey where a road with two southbound lanes dropped
down to one southbound lane. Mahaffey v. State, 316 S.W.3d 633, 635 (Tex. Crim. App.
2010). And it’s unlike the road at issue in Robinson where there were no traffic signs
indicating an intersection that required a signal. Robinson v. State, 377 S.W.3d 712, 715-16
(Tex. Crim. App. 2012).1 I see no reason under the facts of this case to disturb either the trial
court’s application of law to the facts or the court of appeals’ evaluation of that application.
For better or worse, we have held that the word “turn” in Section 545.104(a) of the
Transportation Code–the statute at issue in this case–is unambiguous, and we have set out
its common meaning. Mahaffey, 316 S.W.3d at 635. According to this Court:
1
Notably, this Court did not need to decide in Robinson whether a turn signal was
required because the only issue was whether an article 38.23 instruction was warranted.
Robinson, 377 S.W.3d at 718. And we left undisturbed the lower court’s determination that a
signal was required. Robinson v. State, No. 06-09-00225-CR, 2011 WL 192752, at *5 (Tex.
App.–Texarkana Jan. 13, 2011) (not designated for publication).
Crider Concurring Opinion - Page 3
The word ‘turn’ is not a legal term of art–it has no ‘acquired
technical meaning.’ ‘Turn’ has many dictionary meanings, but
in the context of driving, ‘turn’ means to change directions–to
turn the vehicle from a direct course of the roadway. You either
turn left, or you turn right out of the direct course or flow of
normal traffic.
Id. Given our recent foray into defining the word “safe,” I think this definition provides
about as much guidance as could be expected regarding the word “turn.” See Butcher v.
State, ___ S.W.3d ___, 2015 WL 359087, at *5 (Tex. Crim. App. Jan. 28, 2015) (setting out
test to determine where location is “safe” for the voluntary release mitigation special issue
in § 20.04 of the Texas Penal Code). And drilling down to find ambiguity in the words used
to define an unambiguous word in a statute–words such as “direct,” “course,” and
“flow”–invites more confusion than clarity.
As a newly minted Austin motorist, I appreciate the dissent’s intellectual desire to
game out every possible traffic scenario attendant to navigating a “Y” intersection. But if
that’s required in every motion to suppress based upon a traffic stop, I can’t wait to get to
roundabouts.2 The dissent asks some very good, thought-provoking questions about this
traffic offense, and I hope the legislature answers them. I share the desire to provide more
guidance to both police and motorists, but we’re not Google maps. I believe Mahaffey and
the statute provided the trial court and the court of appeals with sufficient guidance to resolve
and review appellant’s motion to suppress. I don’t believe that this case is a suitable vehicle
2
TEX . TRANSP . CODE ANN . §545.059(c) (West 2013) (“An operator moving around a
rotary traffic island shall drive only to the right of the island.”); see also NATIONAL LAMPOON ’S
EUROPEAN VACATION (Warner Bros. 1985) (“Big Ben, Parliament”).
Crider Concurring Opinion - Page 4
to revisit Mahaffey, and that is why I believe discretionary review is unnecessary.
Filed: February 25, 2015
Publish